Turley on the Oathkeepers Case

The indictment of eleven individuals associated with the “Oath Keepers” produced an immediate deluge of the postings that an insurrection had finally been established on the January 6th attack at the Capitol. The charges do not establish an insurrection. It does reveal how extremist groups show the protest as an opportunity and hoped that it might trigger greater unrest. However, the indictment does not offer the long-sought proof of an insurrection to fulfill the narrative of many commentators and politicians. While I would not be surprised by additional charges against other co-conspirators and more details could emerge, the indictment does not support the prior allegations of a coordination or collusion with the Trump campaign. Here is a first take on what the indictment says and does not say.

Is this the Insurrection?

Before addressing the details of the indictment, it is important to state the obvious about this indictment and how it is already being spun as proof of an insurrection. It is not.  These are charges of seditious conspiracy based on efforts to disrupt the proceedings. There was discussion among some of the defendants about the prospects of civil war, particularly after January 6th. However, the charge itself is much broader.

The provision in 18 U.S.C. 2384 has long been controversial because it is so sweeping and includes any effort “by force to prevent, hinder, or delay the execution of any law”:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

When most of us discussed the riot previously, we noted that there were people who clearly came to the Hill that day to commit violent acts and interrupt the legislative process. Indeed, most of us predicted that a small group of people would receive the more serious charges.

I have never had much sympathy for those who rioted or those who recklessly fueled such anger. Saying that this was not an insurrection does not mean that this was not a desecration of our constitutional process and values. I publicly condemned Trump’s speech while it was being given and I called for a bipartisan vote of censure over his responsibility in the riots.

The charging of a relatively small number of extremists in this large protest belies rather than supports the broader allegations of an actual insurrection. This remains a protest that became a riot — a view shared by the vast majority of the public. Over seven hundred people have been charged and most face relatively minor charges of trespass and unlawful entry. The fact that there were a small number of people intent on violence does not convert the intent or actions of the thousands in the protest into an insurrection.

FBI sources previously told the media that, despite months of intense investigation, they could find “scant evidence” of any “organized plot” and instead found that virtually all of the cases are “one-offs.” One agent explained: ”Ninety to 95 percent of these are one-off cases. Then you have 5 percent, maybe, of these militia groups that were more closely organized. But there was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.”

This is clearly part of that five percent that the FBI and most of us have been discussing. Their views or intentions do not convert hundreds of defendants from trespassers into insurrectionists.

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